Plaintiff, JEAN M. JOACIN, moves for an order, pursuant to CPLR §5015, to vacate the order of the Court, dated October 23, 2006, dismissing the instant action for failure to prosecute. Counsel for defendant, COLLIN v ARTIS, THE HOMESAVER'S FOUNDATION, INC. and TONDA WARE, opposes the motion, which is determined as follows:

This litigation, sounding in recision, conversion, breach of contract and fraud, arises from the alleged unjust enrichment of defendants, COLLIN v ARTIS, THE HOMESAVER'S FOUNDATION, INC. and TONDA WARE (hereinafter referred to as "WARE") with respect to real property located at 510 Bedford Avenue, Uniondale, New York. In previous motions, plaintiff claimed that, prior to September 28, 2004, he was the homeowner of the property which was in foreclosure and that ARTIS, a mortgage broker and HOMESAVERS, for whom he worked, solicited plaintiff in June 2004 and promised that they could get the property out of foreclosure. In essence, plaintiff asserted that a transaction was arranged by ARTIS and HOMESAVERS whereby a purchaser for the property would be located who would refinance the property and, from the net proceeds of the refinancing, (after payment of the existing liens incurred by plaintiff), all proceeds would be placed in escrow, as a security deposit to pay the new monthly financing debt in the nature of rental payments from plaintiff. Notwithstanding same, it appears that the new owner, WARE, commenced a landlord/tenant eviction action in the District Court, which plaintiff sought to stay and consolidate with the instant action.

On a prior motion, the Court granted plaintiff a preliminary injunction enjoining [*2]defendant WARE and her agents from transferring or encumbering the real property and from continuing with an eviction proceeding allegedly pending in the District Court, County of Nassau, entitled TONDA WARE v. JEAN M. JOACIN, under Index No. LT4200/05 . However, thereafter, the plaintiff and his attorney failed to appear at two (2) scheduled Preliminary Conferences and the Court granted the defendants unopposed motion for summary judgment dismissing the complaint pursuant to 22 NYCRR §202.27, and vacated the preliminary injunction, by order dated October 23, 2006.

On the instant motion, plaintiff states that the last time he spoke to prior counsel, Joseph Corrado, he was told not to worry and that his matter was proceeding well. However, in February 2007, plaintiff received a notice from the Sheriff that he was evicted and later learned that Mr. Corrado had resigned as an attorney for disciplinary reasons. Plaintiff claims that, at that time, his new counsel obtained the Court files in this action and learned that his lawsuit had been dismissed in October 2006 because of Mr. Corrado's failure to appear at two (2) conferences and his failure to pursue the matter. It is plaintiff's position that his default was not willful or intentional but was caused solely by Mr. Corrado's failure to appear on his behalf or to inform him that he was no longer practicing law. He claims that he has been evicted from his home, his lawsuit has been dismissed and he has learned that WARE has made no mortgage payments to her lender and that a foreclosure action is pending against her and that there is a "FOR SALE" sign on the front lawn of the property. Plaintiff urges that the order of the Court dismissing the action be vacated and that the temporary restraining order be reinstated so that he may hold the defendants to answer for their wrongful conduct against him.

In opposition to the motion, counsel for defendants states that plaintiff should not be given a "second bite of the apple" or be relieved of his responsibility to check the status of his case on a regular basis. Counsel urges that the motion be dismissed for failure to provide a reasonable excuse or a meritorious claim as plaintiff has "unclean hands" in that he sought to circumvent the legal rights of his creditors by participating in a sale and leaseback arrangement that "backfired". The Court disagrees.

CPLR §5015 provides that the Court that rendered a judgment or order may relieve a party from it upon such terms that may be just upon the ground of "excusable default", if such motion is made within one year after service of the judgment or order with notice of entry. The party must demonstrate both a reasonable excuse and a meritorious claim (Titan Realty Corp. v Schlem, 283 AD2d 568, 724 NYS2d 908 [2nd Dept. 2001]; Lizardo v Midwest Automation Inc., 13 AD3d 418, 785 NYS2d 702 [2nd Dept. 2004]), and the length of the default is certainly a factor (Dominguez v. Carioscia, 1 AD3d 396, 766 NYS2d 685 [2nd Dept. 2003]).

Afer a careful reading of the submissions herein, it is the judgment of the Court that plaintiff has provided a reasonable excuse for his default in appearing and demonstrated that he has a meritorious claim. Although it appears that the District Court eviction proceeding had granted judgment to defendant WARE prior to plaintiff's motion to this Court seeking a stay of said proceeding, the claims with respect to conversion, breach of contract and fraud remain viable and plaintiff should have his day in Court. Although the action was dismissed in October 2006, plaintiff first learned of the dismissal in February 2007 and then promptly obtained new counsel and timely sought the instant relief. Accordingly, it is hereby [*3]

ORDERED, that plaintiff's motion to vacate the order of the Court, dated October 23, 2006, dismissing the instant action for failure to prosecute, is granted and the matter is returned to the inventory of the undersigned; and it is further

ORDERED, that the preliminary injunction against TONDA WARE is reinstated, and it is directed that, during the pendency of this action, TONDA WARE, and her agents, are enjoined and restrained from transferring, encumbering or assigning the real property located at 510 Bedford Avenue, Uniondale, New York; and it is further

ORDERED, that the parties shall appear for a Preliminary Conference on September 19, 2007, at 2:30 P.M. in Differentiated Case Management Part (DCM) at 100 Supreme Court Drive, Mineola, New York, to schedule all discovery proceedings. A copy of this order shall be served on all parties and on DCM Case Coordinator Richard Kotowski. There will be no adjournments, except by formal application pursuant to 22 NYCRR §125.

All further requested relief not specifically granted is denied.

This constitutes the decision and order of the Court.

Dated: August 27, 2007

_________________________

WILLIAM R. LaMARCA, J.S.C.

TO:

joacin-artis&ware,#

03/dismissal